Whenever the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

The decision to lodge part of of Section Four's "involuntary suspension" power in a majority of the Cabinet was a mistake. For one thing, the President can fire Cabinet Secretaries who might be considering such a suspension and thereby block a removal. (Some members of the Cabinet also strike me as rather poor choices for such a substantial decision.) Since Congress can change the Cabinet requirement through a simple statute, they should do so under an Administration where that is not a live question. Perhaps that responsibility should be given to Congress, or some members of Congress, or a group including the Chief Justice of the United States.

This is not the only problem with the Twenty-Fifth Amendment, but I'm sure we will soon see a deluge of law review articles tackling the subject.

Sort of a catch 22 there, isn't it? If the President is on top of things enough to fire anybody who's plotting to remove him, he's probably competent enough that removal isn't justified on the basis of incapacity. And any other basis requires impeachment.

"If the President is on top of things enough to fire anybody who's plotting to remove him, he's probably competent enough that removal isn't justified on the basis of incapacity."

Why? How much wherewithal does it take to fire someone? A person can be nearly totally deranged and/or physically and mentally unfit and have a few moments of clarity to fire people or whatever. For instance, they might think they are being told to fire them by special spectral spirits from Mars.

Anyway, as to the professor's comments. It is noted that some members of the Cabinet aren't trustworthy to make the decision. Perhaps, that is a concern that should be considered when confirming them. They are supposed to not be total hacks, but have enough wherewithal for at least a majority of them to in extreme cases to make a decision in the interests of the public good. Naive perhaps, but they also daily have the duty to make serious choices especially regarding some of them.

Since the VP was elected (in a fashion) by the people and the Cabinet was chosen by the person (again in a fashion) by someone chosen by the people and confirmed by the Senate (elected by the people), there is some degree of logic in giving them first crack here. IF it looks like POTUS is incompetent and they do not act, Congress has a check available. IOW, there is an argument that it makes sense to set up that special alternative after the VP/Cabinet fails to act.

Perhaps, there is a way to set up a procedure that takes this into consideration. The separate body can decide that there is a special cause for concern and transmit it to the VP. If the VP/Cabinet fails to act, the body then could decide if nonetheless action needs to be taken. Congress still needs to confirm.

A Patsy Cline video of "Crazy" would be good background for this post.

A major problem with the 25th A applied to Trump is that VP Pence, who introduced himself as "a Christian, Conservative and Republican, in that order" then serves as Acting President. Of course, the Revengelicals would like that.

The 25A does have a limited function and unsavory v.p. options would be a concern for many in matters of impeachment as well. It was repeatedly a concern when the v.p. stepped in when someone died by natural causes or otherwise as well.

But, if someone is so unfit that he or she does not meet the 25A minimum, the replacement leaving a lot to be desired still might be better.

The 25th Amendment seems designed for the case of the President's incapacity to carry out the daily duties of the job: showing up for work, receiving briefings and important visitor, reading and deciding on memos, executive orders, etc, and chairing meetings. Cabinet members are in a good position to assess this, better than members of Congress. The case in hand is not fitness for work but erratic and irrational behaviour sufficient to create a real doubt of mental competence. Since Trump's actions are whenever possible carried out in the full glare of publicity, everybody can form their own opinion.

In 1788 the incapacity of George III became public knowledge in that he was unable to deliver the Speech from the Throne at the opening of Parliament. This created a constitutional vacuum. Parliament went ahead anyway and made George's son Prince Regent by an irregular Act of Parliament (though Fox oddly took the view that this wasn't necessary). If Trump goes completely off the rails and the Cabinet refuses to act, a united Congress could probably get away with a similar irregular action.

The point I was making concerned how much awareness it takes to notice that you need to fire someone who's actually plotting against you. A President capable of acting against a cabinet planning a 25th amendment action against him, is a President who evidently isn't incapable. He's paying pretty close attention. (A paranoid President would fire the wrong guy.)

"If Trump goes completely off the rails and the Cabinet refuses to act, a united Congress could probably get away with a similar irregular action."

A united Congress wouldn't have to act in an irregular way. They could just impeach him. Nothing at all irregular about that.

All this, however, is just so much fantasy play on the part of Democrats. Still imagining that you can, somehow, undo an election you didn't like the outcome of. Trump isn't going to be impeached, and short of a stroke or something similar, neither is the 25th amendment going to be invoked.

Parliament in 1788 in its actions concerning George III also had the benefit of the Declaration of Independence and the loss of the Colonies that followed. Of course Trump has had a very long public persona pre his election that some have described as narcissistic.

The point I was making concerned how much awareness it takes to notice that you need to fire someone who's actually plotting against you.

The point I was making is a person can be quite incompetent and still notice people are acting against them. Competence requires a tad more than that.

A President capable of acting against a cabinet planning a 25th amendment action against him, is a President who evidently isn't incapable.

I repeat myself. Why? It simply doesn't require much, merely a few moments of lucidity at most, to see people are acting against you and fire them. Such a bare minimum isn't what it takes to determine a person is competent in a court of law. It surely isn't enough for the President of the United States.

And, yet again Brett is making this partisan, even when people are trying to in general terms flesh out the meaning of constitutional matters. As to what will happen in such a "black swan" (hey, mea culpa!) situation, I'm done with predictions.

"How much wherewithal does it take to fire someone?" Joe asked and Brett commented on to explain a point he had made earlier that Joe was responding to. Today while having lunch I watched a re-run of last Friday's "Charlie Rose Show," which included an interview of the libertarian P. J. O'Rourke, who has a new book out titled "How the Hell Did This Happen?: The Election of 2016." Full disclosure, P. J. endorsed Hillary. One of the things P. J. pointed out is that Trump has long been an actor, including in particular in his role in "The Apprentice." In that role over several years Trump demonstrated how much wherewithal it took for him to fire someone. Many in Trump's base were impressed greatly by the hour long scripted episodes of "The Apprentice." P. J. pointed out that Trump's joint session speech was delivered as the actor he is.

Brett, are you taking a (1st A speech) shot at me about possibilities with Trump at 70 at me at 86? A little history of Reagan suggests one can get by with a little bit of help from one's Republican friends. I imagine in the case of Trump his children might make a move to protect the Trump brand in a graceful manner.

By the Bybee (expletives deleted), voters can decide effectively without voting at times.

Let's not totally abandon our objectivity here. For those of us who believe that Trump is a national embarrassment, and wholly unqualified for the position he holds, his daily conduct proves our point. But "crazy," even in the generic sense of the word, he is not. His tactics for getting around bad news cycles are naive, childish, and sophomoric, but not the handiwork of a "crazy" person. Likely that is because the responsibilities of the office of the presidency are way beyond his mental and emotional capabilities. Face it, we have an inept president, not a mentally incompetent one. So, how do we protect against a " wag the dog" situation when he really gets desperate? Will the joint chiefs keep information from him? Will the Republican Congress get beyond saving unborn babies, only to deny them post-natal healthcare, and start thinking about how they are going to save us from this manifestly inept president? It doesn't take a political scientist to see where all of this is going.

Juli Casale, the post isn't assuming Trump is crazy, though it's a decision given to certain people even if we think them dead wrong. It talking about the proper procedures to determine such a thing. Or, as Brett notes, the possible stroke (something that is not out of the realm of possibility for those 70) or whatnot.

Your concerns are appropriate if somewhat non-germane. There was something of a precedent there with Nixon toward the end from my understandings.

"Brett, are you taking a (1st A speech) shot at me about possibilities with Trump at 70 at me at 86?"

No, not at all. Just observing the odds. Indeed, Trump might make it into his 80's without some kind of vascular accident or mental deterioration. Or he could develop an obsessive compulsion to assign people cutesy names tomorrow. But the odds against him get worse with each year.

The same actuary tables that people have been discussing in connection with the Supreme court apply to him, too, after all.

Brett, life expectancies of various groupings have dropped recently, including white males, in US. So. Car. is 41st on a recent listing by states.

By the Bybee (expletives deleted), re: cutesy names, that was what Trump obsessed about compulsively during the Republican primaries and the general election. I can think of "lyin' Ted and "crooked Hillary." But at 86, I can't remember them all. Perhaps someone out there can help with other cutesy names The Donald came up, as at age 86 the memory is the second thing to go for me. Brett is suggesting that Trump at 70 will only get worse with his cutesy name obsession. Now what hid Trump call Chris Christie? Was it "meatloaf"?

"Trump tried to get the Republican nomination. He made a lot of mistakes early on, improved, and succeeded.

Trump tried to win the general election. Again, he made a lot of mistakes early on, improved, and succeeded.

Now he's trying to be a successful President. He's making a lot of early mistakes. And you're convinced he's just a stupid child flailing around, and will screw up big time."

Well, there is a difference here that you are overlooking. When you try to get the nomination there's a very clear measure of success. You either get it or you don't. The same applies to winning the election. You win or you lose. Simple.

But trying to a successful President is different, obviously, because definitions of success vary widely, and we don't really know what Trump's is. He may very well be "successful" by his own definition. In fact he surely will be successful in his own mind, no matter what. Whether you or I or neither or both will agree with him is by no means clear.

Right, Byomtov, and that will make it even easier for the left to be blindsided going into 2018 and 2020. It will be quite easy to convince yourselves that Trump has performed horribly, and doomed himself and his adopted party, even as a plurality or even majority of voters are happy with his performance.

"usual liberal tendency to view anybody who opposes you as just a collection of bad traits held together by pure evil"

Let me fix that. The tendency of anybody to view those who oppose them as stereotypical baddies if not pure evil, especially since in real life, you interact with opponents who turn out to be better than some sort of horror movie villain.

Trump won the nomination and then the election for various reasons, many rather unfortunate, and not based on him just being a total incompetent moron or some such strawman. It doesn't suddenly make his serious flaws go away. This is not how human nature works though the job at times does help improve the person.

The concerns he is acting like a child too much also is aided and abetted by him repeatedly acting like one. Like your concerns for Sandy Levinson, I fear a bit for the spokespersons and others who repeatedly have to run interference here.

Anyway, looking past those clueless liberals, success can mislead the winners too. As well as their supporters.

Trump spokesman Gorka appeared on the Sunday political talk shows a week ago yesterday in the role of a Trump pitbull. But he was absent yesterday, probably at his winter home in Leningrad. Kellyanne Conway had been missing in inaction for several weeks since her free commercial for Ivanka. In recent weeks Trump pussycat Sarah Huckabee Stevens appeared to take Kellyanne's place. Being a former Arkansas minister's daughter, Sarah smiled and tried to speak more kindly than Kellyanne. Martha Raditz took Sarah to the pulpit and Sarah started to get a little testy. All of the spokespersons seem to fear how Trump might react if they approach something truthful. Reince seems to have disappeared as has Sean Spicer and Stephen Miller from the Sunday political shows. Who's left in the WH to play Trump's pit bull/pussycat on the Sunday political hows? Tillerson, Sessions and Kelly's strings were being maneuvered by Trump who for some reason did not want to pitch his new travel ban EO, presumably because in Trump's mind viewers would see him as an admitted loser because of several courts' actions on Trump's first travel ban EO. Trump keeps a close eye on his cabinet, WH staff, etc. Trump probably praised Ben Carson on his slaves as immigrants comments to HUD staff/employees. Paranoia prevails at the WH.

Trump during the campaigns complained that Obama spent too much time playing golf on the government's dime, that he, Trump, as president would stay in the WH and "work my ass off." That diet hasn't worked as that's the reason he doesn't button his suit jacket. Trump has played so much golf that he might be part of the PGA tour. And not only on the golf course but also in the WH Trump takes "mulligans." Meantime, all the President's men and women cower over what comes next via tweets or otherwise and whom Trump will blame. They are his apprentices.

There'll be a Broadway musical on the Trump Administration in due course. I can hear refrains of "Putin on the Ritz [aka Trump Tower]." It's been some 40 days and forty nights. Is it time for the Ark? The swamp is flooding.

Curious lack of comment from Jack and Marty concerning Team Obama's reported abuse of the "national surveillance state" against Team Trump.

Back during the Dubya administration, both decried the potential for abuse of the NSA / FISA court system, despite the lack of evidence the NSA was in fact targeting US persons.

Nothing but crickets now that we have reporting from progressive media like the NYT, WP, McClatchey and the Guardian using sources within the Obama administration suggesting, after a federal court refused to issue a warrant last summer targeting members of Team Trump, Team Obama obtained a FISA warrant last October to surveil the Trump Tower server by claiming the targets were Russian entities.

It is amusing that the Democrat media and the Guardian were so fixated on advancing the slander that Team Trump were colluding with the Russians to "hack the election" that they completely missed the implications of their reported Team Obama "investigation."

SPAM I AM!'s chirping suggests he is rubbing his legs together in search of nothing. SPAM's closing paragraph is obviously SPAM's effort to curry favor with the leader of Team Trump whom SPAM over and over described as a fascist. What slander, what "investigation? SPAM is trying a Trumpian diversion. I guess there's no traffic on SPAM's blog.

The 25A is interesting in various respects including as a means of determining meaning of the words. It is an example of "originalism" not just being about what happened 1787-1791 or 1868-1870. Also, it's a question of applying text such as "unable to discharge," which if taken literally has an open-ended flavor.

It is also notable that "transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives" repeatedly plays a role here. Is it problematic on some grounds to have them in the line of succession?

Finally, what does "principal officers of the executive departments" mean? Why not just say "Cabinet secretaries" or some such? Doing a search, an OLC opinion found:

“the principal officers of the executive departments” are the heads of the departments listed in 5 U.S.C. § 101."

Of course Trump has intimate details of McCarthyism as Trump early in his business career was mentored by the late Roy Cohn, the attorney who used to whisper in Joe McCarthy's ear during hearings. The Donald and Roy took a shine to each other. Seems like SPAM I AM! is taking a shine to the person SPAM accused over and over again of being a fascist.

By the Bybee (expletives deleted), SPAM fails to answer what he referred to as slander probably because doing so just might be a tad defamatory. SPAM was quite un-lawyerly in failing to qualify his claim of "slander" with "alleged." Sloppy even for a CO hill country DUI criminal defense attorney. SAD.

Further by the Bybee (ED), for those not old enough to remember the days of McCarthyism and the founding of National Review by William F. Buckley, check this out:

https://www.thenation.com/article/squire-willie/

for the 6/11/88 issue of The Nation's "William F. Buckley Lived Off Evil As Mold Lives Off Garbage" by by Robert Sherrill. As for SPAM's research, the maxim "garbage in, garbage out" as suggest my Mr. W.

Mark Tushnet's Affirmative Action for Conservatives posts raises a point I had not previously considered: progressive academics have an edge in publishing over their conservative peers because coming up with new ways to rewrite the law is more interesting than applying the law as written.

True enough.

When performed honestly, applying the law as written is ministerial and often mundane.

Rewriting the law to run other people's lives is far more interesting.